Companies (No. 2) (Northern Ireland) Order 1990
| Jurisdiction | UK Non-devolved |
| Citation | SI 1990/1504 |
| Year | 1990 |
1990 No. 1504 (N.I. 10)
NORTHERN IRELAND
The Companies (No. 2) (Northern Ireland) Order 1990
Made 24th July 1990
Laid before Parliament 9th August 1990
Coming into operation on days to be appointed under Article 1(1)
At the Court at Buckingham Palace, the 24th day of July 1990
Present,
The Queen’s Most Excellent Majesty in Council
Whereas this Order is only made for purposes corresponding to the purposes of provisions of the Companies Act 19891to which section 214 of that Act applies:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1 of Schedule 1 to the Northern Ireland Act 19742(as modified by section 214 of the said Act of 1989) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:—
PART I
INTRODUCTORY
Title and commencement
1.—(1) This Order may be cited as the Companies (No. 2) (Northern Ireland) Order 1990 and shall come into operation on such day or days as the Head of the Department may by order appoint.
(2) An order under paragraph (1) may—
(a)
(a) contain such transitional provisions and savings as appear to the Head of the Department to be necessary or expedient;
(b)
(b) amend any statutory provision which refers to the coming into operation of a provision brought into operation by the order so as to substitute a reference to the actual date on which it comes into operation.
Interpretation
2.—(1) The Interpretation Act (Northern Ireland) 19543shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.
(2) In this Order—
“the Department” means the Department of Economic Development;
“the Companies Order” means the Companies (Northern Ireland) Order 19864;
“the Insider Dealing Order” means the Companies Securities (Insider Dealing) (Northern Ireland) Order 19865;
“the Insolvency Order” means the Insolvency (Northern Ireland) Order 19896.
PART II
INVESTIGATIONS AND POWERS TO OBTAIN INFORMATION
Amendments of the Companies Order
Investigations by inspectors not leading to published report
3. In Article 425 of the Companies Order (appointment of inspectors by Department), after paragraph (2) (investigation of circumstances suggesting misconduct) insert—
“2A Inspectors may be appointed under paragraph (2) on terms that any report they may make is not for publication; and in such a case, the provisions of Article 430(3) (availability and publication of inspectors' reports) do not apply.”.
Production of documents and evidence to inspectors
4.—(1) Article 427 of the Companies Order (production of documents and evidence to inspectors) is amended as follows.
(2) In paragraph (1) (duty of officers to assist inspectors), for “books and documents” substitute “documents”.
(3) For paragraph (2) (power to require production of documents, attendance or other assistance) substitute—
“2 If the inspectors consider that an officer or agent of the company or other body corporate, or any other person, is or may be in possession of information relating to a matter which they believe to be relevant to the investigation, they may require him—
(a) to produce to them any documents in his custody or power relating to that matter,
(b) to attend before them, and
(c) otherwise to give them all assistance in connection with the investigation which he is reasonably able to give;
and it is that person’s duty to comply with the requirement.”.
(4) For paragraph (3) (power to examine on oath) substitute—
“3 An inspector may for the purposes of the investigation examine any person on oath, and may administer an oath accordingly.”.
(5) After paragraph (5) insert—
“6 In this Article “documents” includes information recorded in any form; and, in relation to information recorded otherwise than in legible form, the power to require its production includes power to require the production of a copy of the information in legible form.”.
(6) In Article 429 of the Companies Order (obstruction of inspectors treated as contempt of court), for paragraphs (1) and (2) substitute—
“1 If any person—
(a) fails to comply with Article 427(1)(a) or (c),
(b) refuses to comply with a requirement under Article 427(1)(b) or (2), or
(c) refuses to answer any question put to him by the inspectors for the purposes of the investigation,
the inspectors may certify that fact in writing to the court.”.
Duty of inspectors to report
5. In Article 430 of the Companies Order (inspectors' reports), after paragraph (1A) insert—
“1B If it appears to the Department that matters have come to light in the course of the inspectors' investigation which suggest that a criminal offence has been committed, and those matters have been referred to the appropriate prosecuting authority, it may direct the inspectors to take no further steps in the investigation or to take only such further steps as are specified in the direction.
1C Where an investigation is the subject of a direction under paragraph (1B), the inspectors shall make a final report to the Department only where—
(a) they were appointed under Article 425(1) (appointment in pursuance of an order of the court), or
(b) the Department directs them to do so.”.
Power to bring civil proceedings on the company’s behalf
6. In Article 431 of the Companies Order (power to bring civil proceedings on the company’s behalf), for the opening words of paragraph (1) down to “it appears to the Department” substitute “If from any report made or information obtained under this Part it appears to the Department”.
Expenses of investigating a company’s affairs
7.—(1) Article 432 of the Companies Order (expenses of investigating a company’s affairs) is amended as follows.
(2) For paragraph (1) substitute—
“1 The expenses of an investigtion under any of the powers conferred by this Part shall be defrayed in the first instance by the Department but it may recover those expenses from the persons liable in accordance with this Article.
There shall be treated as expenses of the investigation, in particular, such reasonable sums as the Department may determine in respect of general staff costs and overheads.”.
(3) In paragraph (4) for “the inspectors' report” substitute “an inspectors' report”.
(4) For paragraph (5) substitute—
“5 Where inspectors were appointed—
(a) under Article 424, or
(b) on an application under Article 435(3),
the applicant or applicants for the investigation is or are liable to such extent (if any) as the Department may direct.”.
Power of Department to present winding-up petition
8.—(1) Article 433 of the Companies Order (power of Department to present winding-up petition) is repealed; but the following amendments have the effect of re-enacting that provision, with modifications.
(2) In Article 104(5) of the Insolvency Order (application by Department for company to be wound up by the court), for sub-paragraph (b) substitute—
“(b)
“(b) in a case falling within Article 104A.”.
(3) After that Article insert—
“Petition for winding up on grounds of public interest
104A.—(1) Where it appears to the Department from—
(a)
(a) any report made or information obtained under Part XV of the Companies Order (company investigations, &c.),
(b)
(b) any report made under Article 16A of the Insider Dealing Order,
(c)
(c) any report made under section 94 of the Financial Services Act 1986 or any information obtained under section 105 of that Act,
(d)
(d) any information obtained under section 2 of the Criminal Justice Act 1987 or section 52 of the Criminal Justice (Scotland) Act 1987 (fraud investigations), or
(e)
(e) any information obtained under section 83 of the Companies Act 1989 (powers exercisable for purpose of assisting overseas regulatory authorities),
that it is expedient in the public interest that a company should be wound up, it may present a petition for it to be wound up if the court thinks it just and equitable for it to be so.
(2) This Article does not apply if the company is already being wound up by the court.”.
Inspectors' reports as evidence
9. In Article 434 of the Companies Order (inspectors' reports to be evidence), in paragraph (1) for “Article 424 or 425” substitute “this Part”.
Investigation of company ownership
10. In Article 435 of the Companies Order (power to investigate company ownership), for paragraph (3) (investigation on application by members of company) substitute—
“3 If an application for investigation under this Article with respect to particular shares or debentures of a company is made to the Department by members of the company, and the number of applicants or the amount of shares held by them is not less than that required for an application for the appointment of inspectors under Article 424(2)(a) or (b), then, subject to the following provisions, the Department shall appoint inspectors to conduct the investigation applied for.
3A The Department shall not appoint inspectors if it is satisfied that the application is vexatious; and where inspectors are appointed their terms of appointment shall exclude any matter in so far as the Department is satisfied that it is unreasonable for it to be investigated.
3B The Department may, before appointing inspectors, require the applicant or applicants to give security, to an amount not exceeding £5,000, or such other sum as it...
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